Parsidh Rai and Others vs Raji Nain and Others

John Edge, Kt., C.J. and Burkitt, J.—This was a suit for a declaration of title, and for possession, in the event of the plaintiffs being found not to be in possession. One of the grounds upon which the suit was resisted was that the matter had been concluded by the decision of the Settlement Officer on an award, and that Section 231 of Act No. XIX of 1873 applied. The Munsif ound for the plaintiffs, finding that there had been no award. The defendants'' appeal was heard by the Subordinate Judge, who decided that there had been a reference and an award and a decision thereupon to which Section 231 of Act No. XIX of 1873 applied. The plaintiffs have appealed.

We were pressed in appeal with a decision of this Court in the case of Satan Singh v. Mahdeo Singh, Weekly Notes, 1886, p. 180, and it was contended that according to that decision there could be a good reference u/s 222 of Act No. XIX of 1873 to one arbitrator alone. The learned Judges in that case do not appear to have decided that precise point. They held that there was nothing in Section 222 to prohibit a reference to one arbitrator. Whether they considered that, in that case, the reference was good as being a private reference by consent of parties or not we cannot say. In the present case the only question before us is: Was the decision of the Settlement Officer on the award of 1884 (assuming that the document was an award) a decision within the meaning of Section 231? It is not suggested that there was any reference to two or more arbitrators, or any award of two or more arbitrators, on which the Settlement Officer could decide u/s 230. Reading Sections 222 to 230, we are of opinion that the reference contemplated by that group of sections, and on which the decision referred to in Section 231 could be made is a reference to certainly more than one arbitrator. We are bound to hold that it this report of 1884 was an award, it was not an award on which the Settlement Officer could make a decision u/s 230 of Act No. XIX of 1873, and consequently that Section 231 of that Act did not bar this suit.

We set aside the decree of the Lower Appellate Court, so far as it affects the interest of parties to this appeal, who have been served with notice and who are alive; and we remand this case u/s 562 of the CPC to the Lower Appellate Court for trial upon the merits. The decree below will stand so far as the representatives of deceased parties are concerned where such representatives are not upon this record. Costs will abide the result.